and that a person named Stones, claiming to be entitled to them, induced the tenant to go out and give up possession to him. When the matter came before the county court, Stones having thus been let in, he made what the judge thought was a bonâ fide claim, and so he held that his jurisdiction was at an end. It is a clear rule of law, that a tenant cannot be allowed to dispute his landlord's title. And, if the tenant voluntarily lets another into possession, the person so let in is in the same position as the tenant himself, and is equally estopped. Here, it appears that Stones, the person claiming title, came in after a notice to the tenant not to pay rent to the plaintiff, and, further, that he promised to pay the tenant something for the crops. The tenant, it seems, was anxious to get out of possession, and had offered terms to his landlord. There was some evidence, therefore, that Stones was let in voluntarily by the defendant. It was the duty of the judge, under these circumstances, to decide the first question, viz. whether the letting Stones in was the voluntary act of the defendant, or whether Stones entered compulsorily; *in short, whether there was an eviction by title para

*432] mount. If Stones came in by the permission of the tenant, he

would be in no better position than the tenant himself. But, if the judge arrived at the conclusion that Stones was in by compulsion, then he would have said that the title to the land was in question. The case must, therefore, go back. As to a portion of the claim for rent, viz. for the half-year during which the defendant was in actual occupation of the premises, the judge was at all events bound to hear the matter.

WILLES, J.-I am of the same opinion. The matter may be tested in this way. If the county court judge had decided in favour of the landlord, and a prohibition had been moved for, in order to sustain the application it must have been shown that the judge disposed of a question of title, and not merely that a claim of title was made before him; and for this reason; the question of eviction depends upon two things, -first, whether the party evicting has a good title, secondly, whether the tenant is compelled to quit against his will. Without proposing to offer any opinion as to what ought to be the decision of the county court judge, I will merely observe that it is only necessary to look at the affidavits to see that the tenant was far from being unwilling to go out. It will, however, be for the judge to determine that. If the tenant voluntarily withdrew, the case will be disposed of without determining the title. In Dutens v. Roberts, 1 H. Blac. 100, it was held, that, where the subject of a suit in an inferior court is within its jurisdiction, the circumstances of a matter incidentally arising in the course of the proceedings which is out of its jurisdiction, will not afford ground for a prohibition, unless it be shown that the court is proceeding to adjudicate thereon.

BYLES, J.-I am of the same opinion. The judge of *the *433] county court has not considered the question of eviction all. He seems to have thought that the transaction amounted to a defence not only to the claim for the half-year's rent which accrued after he alleged eviction, but that the estoppel would override the whole rent due. As to the first half-year, the matter clearly must go back. The decision of the county court judge as to the rest depends upon the question whether or not there was a voluntary relinquishment of possession by the tenant. Stones's making a claim of title, if the tenant

voluntarily yielded to it, would not oust the jurisdiction of the county court. The defendant must also show that he was turned out, and that under a claim of title paramount; and, further, that that claim was well founded. Upon both questions, therefore, it is clear that the judge has misconceived his duty, and the case must go back to the county court. Bovill, for the plaintiff, prayed that the rule might be made absolute with costs.

WILLES, J.-The necessity for the application arises from the fault of the judge, a judge of a court of record,-who mistakenly supposed that he had no jurisdiction. It is not, therefore, a case for costs. Rule absolute, without costs.

*NEWMAN v. ROOK, The Vestry of ST. MATTHEW, BETHNAL GREEN, Garnishees. May 8.

[*434

Quære, whether a notice of attachment out of the Lord Mayor's Court, London, is any answer to an order under the garnishee clauses of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125?

At all events, service of such a notice upon the vestry-clerk of a parish without the limits of the city can have no operation upon a debt due from the vestry to the judgment-debtor.

To entitle the garnishee to a writ under s. 64, he must satisfy the court or judge that he has a real ground for disputing his liability for the debt.

JUDGMENT having been recovered by Newman against Rook for a debt of 1527. 108., and there being a sum of 791. 88. 9d. due to the defendant from the vestry of the parish of St. Matthew, Bethnal Green, a summons was taken out on the 28th of April, requiring the vestry to show cause why the debt should not be attached under the garnishee clauses of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125.(a) The vestry-clerk *admitted that 791. 88. 9d. [*435

(a) The 60th section enacts that "it shall be lawful for any creditor who has obtained a judgment in any of the superior courts to apply to the court or a judge for a rule or order that the judgment-debtor should be orally examined as to any and what debts are owing to him, before a master of the court, or such other person as the court or judge shall appoint; and the court or judge may make such rule or order for the examination of such judgment-debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner as in the case of an oral examination of an opposite party before a master under this act."

The 61st section enacts that "it shall be lawful for a judge, upon the ex parte application of such judgment-creditor, either before or after such oral examination, and upon affidavit by himself or his attorney stating that judgment has been recovered, and that it is still unsatisfied, and to what amount, and that any other person is indebted to the judgment-debtor, and is within the jurisdiction, to order that all debts owing or accruing from such third person (hereinafter called the garnishee) to the judgment-debtor shall be attached to answer the judgment-debt; and by the same or any subsequent order it may be ordered that the garnishee shall appear before a judge or a master of the court, as such judge shall appoint, to show cause why he should not pay the judgment-creditor the debt due from him to the judgment-debtor, or so much thereof as may be sufficient to satisfy the judgment-debt."

The 62d section enacts that "service of an order that debts due or accruing to the judgmentdebtor shall be attached, or notice thereof to the garnishee, in such manner as the judge shall direct, shall bind such debt in his hands."

And the 63d section enacts that, "if the garnishee does not forthwith pay into court the amount due from him to the judgment-debtor, or an amount equal to the judgment-debt, and does not dispute the debt due or claimed to be due from him to the judgment-debtor, or if he does not appear upon summons, then the judge may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from such garnishee, towards satisfaction of the judgment-debt."

was due from the vestry to Rook, but alleged, that, on the 21st of April last, he as such vestry-clerk was, when within the jurisdiction of the Lord Mayor's Court, London, served with an attachment issuing out of that court against the said vestry, in an action wherein one Goodwin was plaintiff, and Rook was defendant, and the vestry garnishees, whereby all such moneys, goods, and effects as the vestry then had, or which thereafter should come into their hands or custody, of Rook, were attached to answer Goodwin in a plea of debt, and that the debt sworn to by Goodwin was 287. 128. The learned judge (Williams, J.) thereupon made an order for the payment over of the balance only.

Beasley now moved for a rule calling upon the vestry as garnishees to pay over the 281. 128. A simple notice of an attachment is no answer to an application under this statute. [WILLES, J.-The operation of the statute is to give the judgment-creditor the same rights exactly as the judgment-debtor himself had. WILLIAMS, J.-The question is, whether, in order to make the attachment *from the Lord Mayor's Court *436] effectual against the order of this court under the statute, there

must not be an execution executed: Wetter v. Rucker, 4 J. B. Moore 172 (E. C. L. R. vol. 16), 1 B. & B. 491 (E. C. L. R. vol. 5); Magrath v. Hardy, 4 N. C. 782 (E. C. L. R. vol. 33), 6 Scott 627, 6 Dowl. P. C. 749; Webb v. Hurrell, 4 C. B. 287 (E. C. L. R. vol. 56).] It is clear, that the notice of attachment could not be pleaded in bar to an action brought by the judgment-debtor to recover the debt. It is a mere inchoate lien. The 62d section of the 17 & 18 Vict. c. 125 binds the debt in the hands of the garnishee from the service of the order: but there is no such general law in favour of the attachment out of the Lord Mayor's Court. [WILLES, J.-In Holmes v. Tutton, 5 Ellis & B. 65 (E. C. L. R. vol. 85), it was held that the effect of s. 62 is, that the service binds the debt so as to render the judgment-creditor a creditor having security for his debt within s. 184 of the Bankrupt Law Consolidation Act, 1849, but does not give him a lien so as to bring him within the exception in that section, and consequently that the judgment. creditor could not prevail against the assignees. In Hirsch v. Coates, 18 C. B. 757 (E. C. L. R. vol. 86), this court held that an order upon a garnishee under the 63d section has no operation upon debts of which the judgment-creditor has already divested himself by assignment. The question is whether a debt attached is not in the same condition as if assigned.] In Locke on Attachment 20, it is said, that, "when an action is commenced by the defendant in the attachment against the garnishee, it is a sufficient answer by the garnishee to such action, to plead and prove a recovery by foreign attachment at the suit of a creditor of the plaintiff (the defendant in the attachment), and that such creditor had execution of the sum recovered according to the custom of London, and that such execution was executed of the moneys or goods in the hands of the garnishee. But, when no execution is sued against *437] the garnishee, the *plaintiff may proceed to judgment and execution against the defendant, and in like manner the defendant may sue the garnishee for his debt, notwithstanding the unexecuted judgment. Certified in writing by Brooke, Recorder, in the case of Roberthon v. Norroy, King-at-Arms, 7 Ed. 6, 2." Dyer 83 a. A simple attachment confers no title: it is merely the commencement of an action. Besides, here the debt was not susceptible of attachment at all in the

Lord Mayor's Court. The vestry of St. Matthew, Bethnal Green, are not within the jurisdiction of that court. A service upon the vestryclerk, who happened to be in the city, was no service upon the vestry.

Barnard showed cause in the first instance.-The judgment-debtor has filed a declaration of insolvency, and, consequently, according to Holmes v. Tutton, 5 Ellis & B. 65 (E. C. L. R. vol. 85), if an adjudication takes place, the debt will pass to the assignees, even if the court make the order as prayed. It is only where the garnishee admits that he has in his hands money of the judgment-debtor, that the court will make an order under s. 61. The case of a disputed liability is provided for by s. 64, which enacts, that, "if the garnishee disputes his liability, the judge, instead of making an order that execution shall issue [under s. 63], may order that the judgment-creditor shall be at liberty to proceed against the garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment-debtor if less than the judgmentdebt, and for costs of suit; and the proceedings upon such suit shall be the same, as nearly as may be, as upon a writ of revisor issued under the Common Law Procedure Act, 1852." [CROWDER, J.-There can be no need for such an inquiry if the facts are undisputed.] The parties ought not to be *deprived of the opportunity of putting [*438 their defence upon the record. [WILLES, J.-To entitle the garnishees to have recourse to the 64th section, there must be a substantial dispute.] They dispute their liability to pay the money to this judgment-creditor. [WILLIAMS, J.-Are the vestry of St. Matthew, Bethnal Green, debtors within the jurisdiction of the Lord Mayor's Court?] They were properly served by their clerk within the jurisdiction. [WILLES, J.-They are not a corporation.] Under the Metropolis Local Management Act, 18 & 19 Vict. c. 120, the district board of works is a corporate body; and by the 220th section it is enacted that " any summons or notice, or any writ or other process at law or in equity, or any other matter or thing whatsoever required to be served upon the metropolitan board of works, or any district board or vestry, may, unless herein otherwise provided, lawfully be served by delivering the same personally to the clerk of such respective board or vestry, or by leaving the same at the principal office of such board or vestry." [WILLIAMS, J.-To entitle you to a writ under the 64th section of the Common Law Procedure Act, 1854, you must satisfy the court or a judge that there is just ground for ordering the writ to issue. The question here is, whether it is a just ground for disputing your liability to pay this debt to the judgment-creditor, that you surmise that a foreign attachment is pending.] There is a material distinction between an attachment of money and an attachment of goods: in the case of the latter, to be subject to attachment, they must be within the jurisdiction; but, in the case of the former, it is enough that the debtor is within the jurisdiction when served with the notice. For instance, a man's account at a West-end banker's may be attached by a service upon one of the firm within the jurisdiction; it being supposed that he has *the debt in his pocket. [WILLES, J.-Is every member of a [*439 corporation supposed to carry all the debts of the corporation in his pocket? And, does the same presumption extend to the clerk ?] It

is a fiction which the custom of London sanctions, with a view to favouring commerce.

WILLIAMS, J.-I am of opinion that this rule must be made absolute. The circumstances of the case are these:-A judgment having been obtained against Rook, the ordinary proceeding takes place under the Common Law Procedure Act, 1854, to attach a debt in the hands of third parties. The garnishees dispute their liability, on the ground that the debt has been attached by process out of the Lord Mayor's Court, and contend that that is ground sufficient to induce the judge to direct a writ to issue under the 64th section. I am of opinion that the meaning of that clause is, that, instead of ordering execution to issue against the garnishee, the judge may in his discretion, if he thinks there is sound reason to believe that the garnishee has ground for disputing his liability, direct a writ to issue. Now, here, the only reason suggested why the money should not be paid over, is, that the debt has been attached in the Lord Mayor's Court. To this it is answered, and I think successfully, that the attachment is altogether void, as not being authorized by the custom of London, as certified to the court by Serjt. Brooke, the recorder, in the case of Roberthon v. Norroy, King-at-Arms, Dyer 83,

a.

The custom so certified is, "that, if a man sue another before the mayor, &c., and a third person is indebted to the defendant in as much as the suit of the plaintiff is for, and by the custom of the law of attachment the third person is condemned, and judgment given against him, notwithstanding the judgment, if no execution be sued out against the *440] third person, the plaintiff may resort back to have judgment and execution against the defendant who is his principal debtor; and he(a) may also sue the third person for his debt, notwithstanding the judgment unexecuted, &c." The question is whether this is a debt due from a person within the city. The debtors are the vestry of St. Matthew, Bethnal Green. I am clearly of opinion that they are not debtors within the city; and that the case is not in any degree varied by the fact of the attachment having been served upon the vestry clerk within the city; and consequently that the law of foreign attachment cannot be resorted to here.

CROWDER, J.-I am also of opinion that this rule must be made absolute. It is unnecessary to decide upon the present state of the law of foreign attachment.

WILLES, J.-I entirely agree with the reasons given by my Brother Williams for making this rule absolute. The vestry of St. Matthew, Bethnal Green, appear to be a corporate body; but they are not in any sense within the city of London. If, indeed, each individual member of the body were to go within the city, the corporation would not be there. As to the second question, it may be very fit to be considered whether the mere service of the notice of attachment from the Lord Mayor's Court would prevent the sheriff from taking in execution goods so attached. As to whether it is sufficient for the garnishee to say he disputes the debt, to make it incumbent on the judge to order a writ to issue under the 64th section of the Common Law Procedure Act, 1854, I should say that the mere assertion by the garnishee that he disputes the debt amounts to nothing: there is no substantial dispute until some real answer or defence is set up.

(a) The principal debtor.